Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 8) [2015] NSWSC 44

Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 8) [2015] NSWSC 44

The plaintiff's motion failed because the Court found that there was no agreement that the s 6(4) application would be determined with the substantive issues, the plaintiff had abandoned that application during the trial, and it would be procedurally unfair to the insurers to resurrect it after the evidence had closed and judgment had been delivered. There was no accidental slip or omission because it was unnecessary to deal with an abandoned application, r 36.15 was irrelevant, and r 36.16(3A)'s time limitation had expired. In any event, the principal judgment had found that the insurers were entitled to refuse indemnity.

Jurisdiction
Australia
Judgment Date
11 February 2015
Procedural Posture
Procedure; Notice of Motion Concerning Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / After Principal Judgment; Motion Dealt With by Written Submissions
Outcome
Plaintiff's notice of motion dismissed; plaintiff ordered to pay the cross-defendants' costs of the motion.
Legal Topics
['application Under S 6(4) Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'accidental Slip or Omission' 'irregular Judgment' 'procedural Fairness' 'abandonment of Application at Trial']
['civil Procedure' 'insurance Law'] ['application Under S 6(4) Law Reform (miscellaneous Provisions) Act 1946 (nsw)' 'accidental Slip or Omission' 'irregular Judgment' 'procedural Fairness' 'abandonment of Application at Trial']

Case Brief

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Procedural Posture

Procedure; Notice of Motion Concerning Leave Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 (nsw) / After Principal Judgment; Motion Dealt With by Written Submissions

Legal Issues

  1. 1 ["Whether the plaintiff's s 6(4) application should be dealt with after judgment had been delivered" 'Whether there was an accidental slip or omission in the judgment under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW)' 'Whether the judgment was given irregularly, illegally or against good faith under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW)' 'Whether the plaintiff abandoned the s 6(4) application at trial' 'Whether considering the s 6(4) application after closing address and judgment would be procedurally unfair to the insurers']

Ratio Decidendi

The plaintiff's motion failed because the Court found that there was no agreement that the s 6(4) application would be determined with the substantive issues, the plaintiff had abandoned that application during the trial, and it would be procedurally unfair to the insurers to resurrect it after the evidence had closed and judgment had been delivered. There was no accidental slip or omission because it was unnecessary to deal with an abandoned application, r 36.15 was irrelevant, and r 36.16(3A)'s time limitation had expired. In any event, the principal judgment had found that the insurers were entitled to refuse indemnity.

Court Disposition

Plaintiff's notice of motion dismissed; plaintiff ordered to pay the cross-defendants' costs of the motion.

Orders

  • ["The plaintiff's notice of motion filed on 12 November 2014 is dismissed." 'The plaintiff is to pay the cross-defendants costs of the motion.']